Citation Nr: 21031018 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-06 204 DATE: May 20, 2021 ORDER Entitlement to recognition of T.W., C.W., M.W., S.S.W., S.A.W., and E.W., as the Veteran's dependent children for VA purposes is denied. REMANDED Whether the denial of apportionment of VA compensation benefits in favor of the Veteran's spouse while the Veteran was incarcerated was proper. Whether the effective date of April 2, 2016, for the reinstatement of VA compensation benefits in lieu of military retired pay was proper. FINDING OF FACT The Veteran's parental rights have been terminated. The children are not members of his household and they are not in his constructive custody. CONCLUSION OF LAW The criteria for entitlement to recognition of T.W., C.W., M.W., S.S.W., S.A.W., and E.W., as the Veteran's dependent children for VA purposes have not been met. 38 U.S.C. § 101(4)(A)(iii); 38C.F.R. §3.57(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter's complicated procedural history is outlined in detail in the Board's September 2019 remand. It will not be repeated here except to correct that there was no January 2017 Statement of the Case (SOC). Instead, the SOC was issued in May 2017. Nonetheless, the Board has accepted jurisdiction of the case by virtue of the notice of disagreement and SOC issuance. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (noting that the Board's exercise of jurisdiction over a matter is derived from the notice of disagreement). The Board notes that the Veteran has asked VA to correct his retirement date from July 1997 to August 1997 in a statement dated March 2018. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to recognition of T.W., C.W., M.W., S.S.W., S.A.W., and E.W., as the Veteran's dependent children for VA purposes The Veteran asserts that his former adopted children, T.W., C.W., M.W., S.S.W., S.A.W., and E.W., should be treated as stepchildren for the purposes of VA benefits following the termination of his parental rights. He bases this assertion on the fact that he is still married to the mother of his former children. He asserts that while he is married to C., he is legally their stepfather. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. For VA purposes, a dependent "child" is defined as the Veteran's legitimate child, an unmarried person who is under the age of 18 years, or a stepchild who acquired that status before the age or 18 years and who is a member of the Veteran's household; a "stepchild" may be the legitimate or illegitimate child of the Veteran's spouse. See 38 U.S.C. § 101(4)(A)(iii); 38C.F.R. §3.57(a), (b). The additional compensation for a dependent child is generally discontinued when the dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38C.F.R. §§3.503, 3.667. Here, the evidence reflects that T.W., C.W., M.W., S.S.W., S.A.W., and E.W. were adopted by the Veteran and his spouse at various dates prior to February 2008. See August 1999 Order of Adoption (for C.W.); July 2000 Order of Adoption (for M.W.); August 2001 Order of Adoption (for T.W.); November 2006 Order of Adoption (for S.S.W.); July 2007 Order of Adoption (for E.W.); and January 2008 Order of Adoption (for S.A.W.). The children were added as dependents to his compensation award at the respective times. In April 2011, the Veteran was confined to a penal institution after conviction of crimes related to sexual assault and possession of child sexually abusive materials. In August 2012, the Veteran's parental rights were terminated by a Michigan State court as to T.W., C.W., M.W., S.S.W., S.A.W., and E.W., and they were placed with their mother. See August 2012 Michigan Court Order Following Hearing to Terminate Parental Rights. The Board notes that there was some dispute and confusion as to whether the Veteran was divorced from his spouse. Ultimately, VA concluded that the Veteran was not divorced from his spouse. Rather, the Veteran and his spouse are legally separated under the terms of a Consent Judgement of Separate Maintenance in February 2013. It does not appear that this document is in the claims file. Nonetheless, in July 2015, the Veteran and his wife entered into a First Amended Consent Judgment of Separate Maintenance (Consent Judgment). The Consent Judgement provided that the mother has sole legal and physical custody and therefore, the children reside with her. The Consent Judgment also provided that neither party shall pay child support. The Veteran was released from prison on parole in July 2015. One of the conditions of his parole was that he have no contact with any child 17 or younger, or that a responsible adult be present if he is with child 17 or younger. Thus, beginning August 2012, the Veteran was no longer an adopted parent of the children and the children did not live with him since August 2012. The residency status of the children was confirmed by the Veteran in a September 2019 telephone call with VA, reported in a VA Form 27-0820 Report of General Information. At that time, the Veteran reported that the Veteran owns the home where the children and his spouse reside. The home ownership is contradicted by the July 2015 Consent Judgement, which stated that the parties have no further ownership in any real property. The Board notes that the action taken by VA in the September 2019 telephone call with the Veteran substantially complies with the September 2019 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon discovery of the termination of parental rights, VA terminated the dependency benefits of the children effective August 2012, the date of the termination of parental rights. The Veteran appealed and asserted the stepchild theory of entitlement. The Board now analyzes whether it was proper to terminate the dependency benefits for the former stepchildren. It is clear that, as of August 2012, the children do not qualify as adopted children. The question before the Board is whether the children qualify as stepchildren. The regulation provides that a stepchild must acquire that status before the age or 18 years and must be a member of the Veteran's household. See 38 U.S.C. § 101(4)(A)(iii); 38C.F.R. §3.57(a), (b). The Veteran's representative points to policy in the VA Adjudication Procedures Manual (M21-1), III, iii, 5.G.6., Establishing a Stepchild as a Veteran's Child for VA Purposes. The Board acknowledges that VA manuals like the M21-1 are not be binding on the Board. See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017); Overton v. Wilkie, 30 Vet. App. 257 (2018). However, the Board is not free to simply ignore the Secretary's guidance on an issue. See 38 C.F.R. § 19.5; see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) ("the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision."). Accordingly, the Board reviews and discusses the provisions of the M21-1 regarding the establishment of a stepchild. The M21-1 at III, iii, 5.G.6.c., provides that, under 38 C.F.R. § 3.57, VA may recognize a stepchild as a Veteran's child as long as the stepchild is or was a member of the Veteran's household and met this requirement: before reaching age 18; or between the age of 18 and 23 while enrolled in and attending school. The M21-1 further provides that VA considers a stepchild a member of the Veteran's household if they live apart because one of them is incarcerated or attending school. VA considers a stepchild a member of a Veteran's household if the stepchild is in the Veteran's "constructive custody." A stepchild is in a Veteran's constructive custody if the child is separated from the Veteran for the reasons stated in earlier in the paragraph or is receiving at least half of his or her support from the Veteran. Additionally, the awarding of legal custody to someone other than the Veteran does not affect the stepchild's status as a child of the Veteran as long as the child is actually a member of the Veteran's household. Id. Finally, a stepchild that VA already recognizes as the child of a Veteran does not automatically lose this status when the Veteran and the stepchild's biological or adoptive parent separate or terminate their marriage. VA will continue to recognize the stepchild as the Veteran's child as long as the stepchild remains a member of the Veteran's household, as defined in M21-1, Part III, Subpart iii, 5.G.6.c. III.iii.5.G.6.h. The Board finds that the provisions related to constructive custody do not apply to the case at hand. In this case, the Veteran's parental rights were affirmatively terminated for causes related to the safety of the children. See February 2018 VA Form 646 Statement of Accredited Representative (the Veteran's parental rights were terminated for offenses which may have harmed the children under his care). Evidence in the claims file shows that the criminal allegations were made by one of the Veteran's former children. The termination of parental rights means all rights including rights as a stepparent. In fact, the conditions of the Veteran's parole required him to stay away from children 17 years of age and younger, and the Consent Judgement provides he is not required to pay child support. These findings underscore the seriousness of the situation and the M21-1's inapplicability to the circumstances of this case. Under these circumstances, it would seem absurd to allow the Veteran to retain stepparent status when a court has expressly terminated parental rights and forbidden the Veteran from having contact without supervision. Furthermore, constructive custody does not apply in this case on a factual basis because sole legal and physical custody was awarded to the Veteran's spouse by the terms of the Consent Judgment. The Consent Judgment also provides that the Veteran is not responsible for child support. Another consideration is that the Veteran and the children were not separated because of incarceration or because one was attending school. They were separated from the household because of the award of the Court in the Consent Judgment and the termination of parental rights. This is entirely different from a situation where a veteran has been incarcerated due to a crime unrelated to the children. Accordingly, the Board finds the provisions of the M21-1 do not apply. Otherwise, the Veteran has not shown that the children were in his household since August 2012 or that he provided support for them. In fact, the Veteran acknowledges that the children were not in his household beginning August 2012. In a February 2018 statement, the Veteran's representative acknowledges that C.W., M.W., and S.S.W. as adults can be assumed to be permanently separated from the household of both adopted parents. The conditions of his parole required him to stay away from children 17 years of age and younger. Thus, he legally was not allowed to be in the same household as the children. Furthermore, he has not shown that he has provided any financial support of the children since August 2012. The Consent Judgment shows the opposite. He was not required to pay child support. He has been given the opportunity to submit evidence showing financial support, and he has not done so. Records from July 2015 to June 2016 show that he was living in a temporary housing and was on the verge of being homeless. This situation implies the Veteran would not have been able to provide support for the children, at least until his VA compensation resumed. The Veteran's representative argues that the denial of additional dependency compensation or Chapter 35 Dependent Education Assistance deprives the children of assistance in promoting their education. The Board finds, however, that the Michigan court order terminating parental rights is clear, and that the requirements of stepchild status have not been met. REASONS FOR REMAND 1. Whether the denial of apportionment of VA compensation benefits in favor of the Veteran's spouse while the Veteran was incarcerated was proper is remanded. The Veteran submitted a timely notice of disagreement with a July 2013 apportionment decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 2. Whether the effective date of April 2, 2016, for the reinstatement of VA compensation benefits in lieu of military retired pay was proper. The Veteran submitted a timely notice of disagreement with a June 2017 administrative decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of whether the denial of apportionment of VA compensation benefits in favor of the Veteran's spouse while the Veteran was incarcerated was proper and the issue of whether the effective date of April 2, 2016, for the reinstatement of VA compensation benefits in lieu of military retired pay was proper. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. . D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.